Please click here to opt in to receive via email our Roundup—brief daily summaries of news developments and commentary related to executive power.
The “criminal information” the Department of Justice filed on Oct. 5 against former FBI Director James Comey is legally flawed. The problem is not just that two sets of prosecutors in the Trump 1.0 Justice Department investigated this matter and declined to bring charges. The more immediate problem is that the Trump 2.0 Justice Department waited too long to bring the case.
The information accuses Comey of violating 18 U.S.C. § 793 related to an alleged leak on Oct. 5, 2016. Section 19 of the Internal Security Act of 1950 provides that “[a]n indictment for any violation of” 18 U.S.C. § 793 “may be found at any time within ten years next after such violation shall have been committed.” To satisfy this statute of limitations, DOJ needed to bring an indictment for a violation of Section 793 within ten years of the alleged crime.
For whatever reason—lack of evidence, incompetence, some combination—DOJ did not secure an indictment from a grand jury within the ten-year period. Instead, it filed a criminal information, a document unreviewed by a grand jury or a judge. That does not meet Section 19’s plain-text requirement of an indictment to satisfy the statute of limitations for alleged violations of Section 793.
There is a big difference between an indictment and an information. The Fifth Amendment says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury[.]” A criminal information is a unilateral prosecutorial charging document that can only be used to support conviction for felony defendants who “waive[] prosecution by indictment.” Comey did not waive.
DOJ released this statement:
The Department filed a waiverless criminal information to toll the statute of limitations as it relates to allegations concerning former FBI Director Comey. Filing a criminal information to toll the statute of limitations is a widely recognized practice in federal court and has been approved by multiple Circuit Courts of Appeals.
The “widely recognized practice” approved by many circuit courts has no connection to this case. The government is referring to the filing of an information under the default 5-year statute of limitations for federal crimes in 18 U.S.C. § 3282. That statute provides: “[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”
Several courts of appeals have read this language to mean that the filing of an information within 5 years of the crime satisfies the statute of limitations under 3282. But Section 3282 cannot help the government. Its 5-year period ran in 2021 and in any event does not apply if another statute “otherwise expressly provide[s].” Section 19 otherwise expressly provides. It establishes a 10-year statute of limitations for Section 793 crimes, but only if DOJ brings an indictment, which it did not do.
The government is trying to leverage the language of the now-expired 5-year statute of limitations, which could have been satisfied by the filing of a criminal information, to meet the requirements of a 10-year statute of limitations that can only be satisfied by the filing of an indictment that it did not secure.
As Section 3282 (and other statutes) shows, Congress understands indictments and informations to be the different things that they are when it writes statutes of limitations. It often says that both can satisfy a criminal statute of limitations. But Congress in Section 19 decided that only an “indictment” could satisfy the statute of limitations relevant to the charges against Comey. The government did not secure an indictment within the ten-year period, and the case should be dismissed.
The government’s arguments against this straightforward reading of Section 19 are convoluted. The main one is this: “Section 19 sets the limitations period for the underlying Espionage offenses at ten years; and under 18 U.S.C. § 3282(a), that statute-of-limitations period is satisfied whether ‘the indictment is found or the information is instituted.’”
But Section 3282(a) does not say this and cannot be split up in this way. That section provides a 5-year statute of limitations for the bulk of federal crimes and specifies what events trigger it: indictment or information. It further says that these rules apply “except as otherwise expressly provided by law[.]” And as noted above, the law does expressly otherwise provide: Section 793 offenses have their own express statute of limitations (10 years) and their own express trigger (an indictment), which the government did not satisfy.
This reading applies Section 3282 in full and reads the exception by its terms. The government, by contrast, is trying to lift the trigger from the 5-year limitation in Section 3282 (indictment or information) and splice it onto the 10-year limitation in Section 19 while ignoring Section 19’s specified, bespoke trigger—indictment alone.
The government also makes historical and purposivist arguments that Comey’s lawyers have successful responses to. But the meaning of the relevant statutes is so clear that I do not think these secondary arguments should matter.
I feel a bit silly making technical legal points when this matter—filed not by the U.S. Attorney or the National Security Division of the Justice Department, but rather by Attorney General Blanche’s cronies—is so obviously a sham. It’s hard to fathom what the Attorney General tells himself as he grossly abuses the power of the Department of Justice at the behest of his Article II master.